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Appeals court allows Abbott to close multiple ballot drop-off sites

Chuck Lindell
Ballot by mail hand delivery clerk Nathan Griffith stamps a ballot before dropping it in the secured box at Travis County's drive-thru ballot drop off at 5501 Airport Blvd. on Oct. 8.

In a ruling issued late Monday night, a federal appeals court upheld Gov. Greg Abbott’s order that limited counties to one mail-in ballot drop-off location.

A three-judge panel of the 5th U.S. Circuit Court of Appeals, all appointed by President Donald Trump, rejected arguments from civil and voting rights groups that claimed Abbott’s order suppressed voting rights by making it harder to cast a ballot, particularly for elderly and disabled voters who are the most likely to use mail-in balloting.

In reality, the judges said, Abbott expanded voting options by suspending a state law that allows mail-in ballots to be hand delivered only on Election Day — a July 27 order that Abbott merely refined on Oct. 1 by closing multiple ballot drop-off sites in Travis and three other large counties, the panel said.

“That effectively gives voters 40 extra days to hand-deliver a marked mail-in ballot to an early voting clerk. And the voter still has the traditional option she has always had for casting a mail-in ballot: mailing it,” Judge Stuart Kyle Duncan wrote for the panel.

The ruling blocked Friday’s injunction from U.S. District Judge Robert Pitman, who said Abbott’s order placed an unacceptable burden on voters who are most vulnerable to COVID-19.

“Older and disabled voters living in Texas’ largest and most populous counties must travel further distances to more crowded ballot return centers where they would be at an increased risk of being infected by the coronavirus in order to exercise their right to vote and have it counted,” Pitman wrote.

Texas Attorney General Ken Paxton quickly appealed, and the 5th Circuit Court issued an informal stay Saturday that blocked Pitman’s ruling until it could hear from both sides.

On Monday, the panel that also included Judges Don Willett and Jim Ho issued a “stay pending appeal,” putting Pitman’s ruling on hold until the appeal is completed and Pitman’s order is upheld or overturned.

The panel criticized Pitman for vastly overstating the magnitude of the burden on voting rights caused by Abbott’s “partial refinement” of an earlier order that made it easier for eligible Texans to hand deliver a ballot before Nov. 3.

“How this expansion of voting opportunities burdens anyone’s right to vote is a mystery,” Duncan wrote. “Indeed, one strains to see how it burdens voting at all.”

Texans still have “numerous ways” to participate before the Nov. 3 election — by voting early beginning Tuesday because Abbott added six days to the early voting period as a pandemic safety measure, by hand delivering completed mail-in ballots before Election Day, and by dropping their ballot in the mail, Duncan said.

Abbott took to Twitter to praise the court for finding that he had expanded access to voting.

“Critics were clearly clueless about the legality of my action & simply voiced prejudicial political opinions,” he wrote early Tuesday morning.

Ho, however, wrote a concurring opinion that criticized Abbott for issuing pandemic-related orders under his emergency disaster powers instead of heeding calls for a special legislative session to debate changes to state election laws.

“The district court was wrong to rewrite Texas law. But the distinguished judge who did so was simply following in the Governor’s footsteps,” Ho wrote. “It is surely just as offensive to the Constitution to rewrite Texas election law by executive fiat as it is to do so by judicial fiat. Yet that is what occurred here.”

Lawyers for Texas have argued that the Texas Disaster Act of 1975 gives governors the power to suspend regulations and laws that would prevent, hinder or delay necessary action in coping with a disaster, including a dangerous pandemic.